Petition for Writ of Certiorari — Davis v. United States
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LY FILED
O4 817 CEC 17 2008
No.
IN THE
Supreme Court of the United States
SECOND LIEUTENANT RYAN W. DAVIS,
Petitioner
V.
UNITED STATES OF AMERICA,
Respondent
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Armed Forces
PETITION FOR WRIT OF CERTIORARI
CARLOS L. MCDADE
COLONEL, U.S. AIR FORCE
Counsel for Petitioner
December 2004
L. MARTIN POWELL
CAPTAIN, U. S. AIR FORCE
Counsel of Record
TERRY L. MCELYEA
MAJor, U.S. AIR FORCE
Counsel for Petitioner
APPELLATE DEFENSE DIVISION
AIR FORCE LEGAL SERVICES AGENCY
112 LUKE AVENUE, SUITE 343
BOLLING AFB, DC 20332-8000
(202) 767-1562
QUESTIONS PRESENTED
I. Whether petitioner’s conviction for violating Article 125,
UCMJ, for engaging in consensual sodomy must be set aside
in light of this Court’s holding in Lawrence v. Texas, 539
U.S. 558 (2003).
Il. Whether an airman’s admission during a plea inquiry that
his conduct was prejudicial to good order and discipline and
of a nature to bring discredit upon the armed forces was
“voluntary” and “intelligent” when, at the time he made it,
he had just been misinformed that his conduct violated
federal law.
Il. Whether Article 134 of the Uniform Code of Military
Justice, 10 U.S.C. § 934, is overly broad and void for
vagueness as applied?
TABLE OF CONTENTS
Page
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ITT TTTTITITT steiistshiapbdeiesernitinsaieniieninpscitincenscntenensininoeiauatmensinaee |
CONSTITUTIONAL AND STATUTORY
Pe EIT BS WRIe Te EPA cectsinasnccsencsesesetscesesnseincccssensesues ]
STATEMENT OF THE CASE...........ssssscssssessessesseeneeneenesesens 3
REASONS FOR GRANTING THE WRIT................:.cccceeeees 8
FFE PILIITN osecscnocnccnsencnsncecnsion sueitcinsteensibingestbiiiniiicncineniinainetiia 29
APPENDIX A
(Order of the United States Court of Appeals for the
Armed Forces in United States v. Davis, dated 20
I caibictinsshticindchiinaicenhinnbaetinsenibeninnccecouneannaitjane la
APPENDIX B
(Opinion of the United States Air Force Court of
Criminal Appeals in United States v. Davis, dated 28
iv
v
TABLE OF AUTHORITIES
Page
Constitutional Provisions
GMINA LT LER ETN ERED OG 1,8
a FN isis dig aia 1]
Decisions of the Supreme Court of the United States
Ashcroft v. Free Speech Coalition,
FF AI Ee CED ieitisnanasissisioneieninscnintanininaenie passim
Blakely v. Washington, 124 S. Ct. 2531 (2004) ........eesesesseee 14
Bousley v. United States, 523 U.S. 614 (1998) .......cccscsseseee: 18
Bowers v. Hardwick, 478 U.S. 186 (1986) ........ccccccccseseseeees 10
Cole v. Arkansas, 333 GS OP CO ciicssistismanaiteaseneiilianhenie 15
Henderson v. Morgan, 426 U.S. 637 (1976)........cscsssssesesese: 17
Lawrence v. Texas, 539 U.S. 558 (1974) ....ccccccsseseseeee. passim
Miller v. California, 413 U.S. 15 (1973)........ccccecscsseseseseseees 17
Parker v. Levy, 417 U.S. 733 (1974) ...cccccccsssssssssssesececes 28, 29
Military Cases
United States v. Brown, 18 M.J. 360 (C.M.A. 1984)........... 15
United States v. Marcum, 60 M.J. 198
AE ESE NTA SE REM FT passim
vi
United States v. Mason, 60 M.J. 15 (C.A.A.F. 2004) ...passim
United States v. O’'Connnor, 58 M.J. 450
eT Tee: passim
United States v. Riley, 50 M.J. 410 (C.A.A-F. 1999).......... 14
United States v. Scoby, 5 M.J. 160 (C.M.A. 1977) ..........9, 10
Federal Statutes
UDC. § SORDID. .cccinsnintcieneamaee 1
SO TREC, 6 FOE insesisienonsicrisictnineac passim
SO TER. 6 OG i ccisesinencoseenssialcmmeaaaeaaeee passim
UBL. 6 SUDA. ...sccitmusccemmummemaeen passim
EO UE 6 GINN,,..sscncccnennetnnee 2, 4, 18, 24
MUSL. 6 TEND.......nicncsinaielaaneee 1
The petitioner, Second Lieutenant Ryan W. Davis,
respectfully prays that a writ of certiorari issue to review the
order and judgment of the United States Court of Appeals for
the Armed Forces entered in his case on September 20, 2004.
OPINIONS BELOW
The order and judgment of the United States Court of
Appeals for the Armed Forces, United States v. Davis,
USCA Dkt. No. 02-0065/AF, is located at Appendix A. The
unpublished opinion of the United States Air Force Court of
Criminal Appeals (No. ACM 33877, August 28, 2001) is
located at Appendix B.
JURISDICTION
The judgment of the United States Court of Appeals for
the Armed Forces was entered on September 20, 2004.' The
jurisdiction of this Court is invoked under 28 U.S.C. §
1259(3) and 10 U.S.C. § 867(a)(3).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The First Amendment to the United States Constitution
provides that "Congress shall make no law . . . abridging the ~
freedom of speech.”
The Due Process Clause of the Fifth Amendment to the
United States Constitution states that "No person shall . . . be
deprived of life, liberty, or property, without due process of
law."
' Appendix A, p. la.
2
Article 125, Uniform Code of Military Justice (UCM)J),
Section 925 of Title 10, United States Code [hereinafter
Article 125], provides:
Any person subject to this chapter who engages in
unnatural carnal copulation with another person of the
same or opposite sex or with an animal is guilty of
sodomy. Penetration, however slight, is sufficient to
complete the offense.
Section 2256(8) of Title 18, United States Code,
contained the following definition that applied to a violation
of Section 2252A of the same title:
"child pornography" means any visual depiction,
including any photograph, film, video, picture, or
computer or computer-generated image or picture,
whether made or produced by electronic, mechanical,
or other means, of sexually explicit conduct, where—
(A) the production of such visual depiction
involves the use of a minor engaging in sexually
explicit conduct;
(B) such visual depiction is, or appears to be, ofa _
minor engaging in sexually explicit conduct;
(C) such visual depiction has been created,
adapted, or modified to appear that an identifiable
minor is engaging in sexually explicit conduct; or
(D) such visual depiction is advertised, promoted,
presented, described, or distributed in such a manner
that conveys the impression that the material is or
contains a visual depiction of a minor engaging in
sexually explicit conduct.
Article 134, UCMJ, Section 934 of Title 10, United
States Code [hereinafter Article 134], provides:
3
Though not specifically mentioned in this chapter, all
disorders and neglects to the prejudice of good order
and discipline in the armed forces, all conduct of a
nature to bring discredit upon the armed forces, and
crimes and offenses not capital, of which persons
subject to this chapter may be guilty, shall be taken
cognizance of by a general, special, or summary
court-martial, according to the nature and degree of
the offense, and shall be punished at the discretion of
that court.
STATEMENT OF THE CASE
On September 22, 1999, petitioner was tried by a general
court-martial composed of a military judge sitting alone at
Tyndall Air Force Base, Florida. The petitioner pled guilty
to one specification alleging that he engaged in consensual
sodomy in violation of Article 125, UCMJ, one specification
alleging that he wrongfully possessed child pornography,
and one specification alleging that he wrongfully distributed
child pornography.’ Both child pornography specifications
were charged as violations of Title 18, United States Code,
Section 2252A, assimilated under clause 3 of Article 134,
UCM3J.
Following the entry of petitioner’s guilty pleas, the
military judge conducted an inquiry with petitioner to
determine whether his pleas were provident. With respect to
the specification alleging consensual sodomy between
petitioner and B.E.P., the military judge instructed petitioner
as follows:
? Petitioner was also charged with and pled guilty to conduct unbecoming
an officer in violation of Article 133, UCMJ, for persuading or enticing
B.E.P., a person under the age of 18 years, through a means of interstate
commerce, to engage in sodomy. Additionally, petitioner pled guilty to
obstruction of justice in violation of Article 134, UCMJ.
4
Sodomy is unnatural carnal copulation. Unnatural
carnal copulation occurs when a person takes into his
mouth the reproductive sexual organ of another
person, or places his penis into the mouth of another.
Penetration of the mouth, however slight, is required
to establish this offense, and ejaculation is not
required. Neither force nor lack of consent are
required for this offense. Stated conversely, neither
lack of force nor consent are defenses. (R. 30).
Petitioner then admitted that he met B.E.P., a 16-year-old
male, sometime after April 1997 and engaged in consensual
mutual oral sodomy with B.E.P. in a park in Gulf Breeze,
Florida.’ (R. 30-31; Pros. Ex. 1).
As to specifications 1 and 2 of Charge III, during the
providence inquiry with petitioner the military judge advised
petitioner of the relevant definitions relating to the offenses
of possession and distribution of child pornography. In
doing so, the military judge recited the same definitions of
"child pornography" contained in Title 18, Sections
2256(8)(B) and 2256(8)(D) that this Court struck down as
unconstitutionally overbroad in Ashcroft v. Free Speech
Coalition, 535 U.S. 234 (2002). (R. 39-40).
Specifically, the military judge advised the petitioner
during the providence inquiry that the term “child
pornography” means, among other things, any visual
depiction of sexually explicit conduct where such visual
depiction is, or appears to be, of a minor engaging in
sexually explicit conduct. Jd.
> Under the Uniform Code of Military Justice, the age of lawful consent
for sexual activity is 16 years of age. ,
5
While setting forth for petitioner the elements of the two
child pornography specifications, the military judge added
the following element to the offenses:
That, under the circumstances, [the petitioner’s]
conduct was to the prejudice of good order and
discipline in the armed forces or was of a nature to
bring discredit upon the armed forces.
When adding this third element to the child pornography
specifications the military judge acknowledged that the third
element was not actually an element of the offenses charged.
(R. 37, 38). However, the military judge reasoned that, by
adding the third element, the government could “rely upon
the lesser included offense of an act or disorder prejudicial to
good order and discipline as a lesser included offense” should
petitioner’s conviction later be overturned cn appeal.
In pleading guilty, petitioner agreed that the elements and
definitions taken together correctly described his actions.
(R. 40). Specifically, in discussing his plea to specification 1
of Charge III, petitioner agreed that he had “possessed three
or more images of chiid pornography.” The military judge
also asked if petitioner knew “that the individuals depicted in
at least three or more of those images were under the age of
18” and whether the individuals depicted were “engaged in
sexually explicit conduct or child pornography images, as I
have defined that term for you.” To each question, petitioner
responded “Yes, Your Honor.” (R. 47).
With respect to specification 2 of Charge III, petitioner
agreed that he distributed one image of “child pornography”
by sending a picture depicting two minors engaged in
“mutual oral sodomy” to B.E.P. via electronic mail.
Additionally, petitioner agreed with the military judge’s
assertion that, by attaching a file that petitioner knew was
“an image or a depiction of individuals under the age of 18
6
engaging in mutual oral sodomy,” petitioner distributed
“child pornography. (R. 46). However, throughout the
course of the providence inquiry, petitioner never admitted
that he knew or believed the images he possessed and the
image he distributed were produced through the use of actual
minors engaging in sexually explicit conduct.
In addressing the third element that was added by the
military judge, the military judge asked petitioner if he
agreed that “if individuals in the civilian community knew
that we had military members who were storing child
pornography on their computers, that they might think a little
less of the military generally.” Petitioner responded, “Yes,
Your Honor.” Petitioner also agreed with the military
judge’s assertion that “having images of child pornography
is also the kind of behavior that could get some people upset
and cause them to, perhaps, be turbulent or to be upset about
it.” (R. 48). Finally, when the military judge asked if
petitioner agreed “that that conduct is conduct which would
be prejudicial to good order and discipline, or which would
be service discrediting,” petitioner replied, “Yes, Your
Honor.” (R. 49).
After accepting the petitioner’s guilty pleas, the military
judge sentenced the petitioner to be dismissed from the Air
Force, to be confined for 24 months and to forfeit all pay and
allowances. (R. 113).
On appeal of his conviction to the Air Force Court of
Criminal Appeals, petitioner specifically challenged the
constitutionality of Article 125, UCMJ, and of 18 U.S.C. §
2252A. On 28 August 2001, the Air Force Court affirmed
the findings and sentence. United States v. Davis, ACM
33877 (A.F. Ct. Crim. App. 28 August 2001) (App. B, p.
16a). On September 20, 2004, the United States Court of
Appeals for the Armed Forces granted review of the
following two issues:
—
WHETHER PROSECUTION UNDER ARTICLE
125 VIOLATES SUBSTANTIVE DUE PROCESS
BY UNFAIRLY INFRINGING ON
SERVICEMEMBERS’ FUNDAMENTAL RIGHT
TO PRIVACY. ALSO WHETHER PROSECUTION
UNDER ARTICLE 125 FOR _ PRIVATE
CONSENSUAL NON-COMMERCIAL SODOMY
VIOLATES A STATUTORILY ESTABLISHED
ZONE OF PRIVACY WITHOUT A COMPELLING
GOVERNMENT INTEREST.
WHETHER APPELLANT’S PLEA OF GUILTY TO
POSSESSING AND TRANSPORTING CHILD
PORNOGRAPHY UNDER 18 U.S.C. § 2252A IS
IMPROVIDENT BECAUSE CONVICTION
UNDER SAID STATUTE VIOLATES THE FIRST
AMENDMENT’S GUARANTEE OF _ FREE
SPEECH AND BECAUSE THE PHRASES
“APPEARS TO BE” AND “CONVEYS THE
IMPRESSION” IN THE STATUTE MAKE IT
UNCONSTITUTIONALLY VAGUE AND
OVERBROAD.
In its order granting review of the issues, the Court of
Appeals for the Armed Forces, citing its previous decisions
in United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004),
United States v. Mason, 60 M.J. 15 (C.A.A.F. 2004), and
United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003),
amended specifications 1 and 2 of Charge III by striking
from each specification all language that made reference to
or implied a violation of 18 U.S.C. § 2252A (App. A., pg
2a). The court summarily affirmed the petitioner’s
* This amendment of the specifications had the effect of affirming
convictions under specifications 1 and 2 of Charge III only as to the
lesser-included offenses of violations of clause 1 or 2 of Article 134,
8
conviction under Charge [II and its specifications, as
amended, and affirmed the remaining charges, specifications,
and the sentence.
REASONS FOR GRANTING THE WRIT
This case presents three questions of fundamental
importance to the administration of justice in the United
States armed forces. First, in light of this Court’s recent
decision in Lawrence v. Texas, 539 U.S. 558 (2003), can the
United States continue to prosecute and punish military
members for engaging in private, consensual sexual conduc:
with other adults even though this Court recognized such
conduct as being the sort of liberty interest protected by the
Due Process Clause? This is an important federal question
that should be settled by this Court.
The second question concerns whether petitioner’s
admission at trial that his possession and distribution of
images depicting minors engaged in sexually explicit
conduct was service discrediting is improvident where that
admission was based upon a fundamental misunderstanding
about what constitutes child pornography held as a result of
the use of definitions of child pornography during his trial
that this Court struck down as unconstitutionally overbroad
in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).
Finally, the third question concerns the extent to which
servicemen and women enjoy First Amendment protections
enjoyed by other citizens. Because these questions are of
fundamental importance to the millions who serve in the
armed forces, these issues should be reviewed by this Court.
UCMSJ, rather than a conviction for violating 18 U.S.C. 2252A,
assimilated under clause 3 of Article 134, UCMJ, as charged.
9
I. Petitioner’s conviction for violating Article 125, UCMJ,
for engaging in consensual sodomy must be set aside in
light of this Court’s holding in Lawrence v. Texas, 539 U.S.
558 (2003).
The specification of Charge I in petitioner’s case alleged
the following violation of Article 125, UCMJ:
In that SECOND LIEUTENANT RYAN W. DAVIS,
United States Air Force, Detachment 1, 325" Fighter
Wing, Pensacola Naval Air Station, Pensacola,
Florida, at or near Gulf Breeze, Florida, did between
on or about 16 October 1996 and 31 August 1997,
commit sodomy with [B.E.P.], by placing his penis in
[B.E.P.’s] mouth and placing [B.E.P.’s] penis into his
mouth.
A conviction under Article 125 requires proof of only
one element: that the accused engaged in unnatural carnal
copulation. See Manual for Courts-Martial, United States
(MCM), Part IV, § 51(b)(1). The Manual for Courts-Martial
offers the following definition of unnatural carnal
copulation:
It is unnatural carnal copulation for a person to take
into that person’s mouth or anus the sexual organ of
another person ... or to place that person’s sexual
organ in the mouth or anus of another person ...
MCM, Part IV, ¥ 51(c) (2002 ed.).
Under Article 125, a military member who is convicted
of private, consensual oral sodomy with another person of
consenting age faces a potential maximum punishment that
includes up to five years imprisonment and a dishonorable
discharge. MCM, Part IV, J 51(e)(4).
10
By its express terms, Article 125 prohibits all oral and
anal sex, heterosexual or homosexual, even between husband
and wife, whether accomplished by force or with consent.
. See United States v. Scoby, 5 M.J. 160 (C.M.A. 1977).
Additionally, Article 125 “does not distinguish between an
act committed in the privacy of one’s home, with no person
present other than the sexual partner, and the same act
committed in a public place in front of a group of strangers,
who fully apprehend the nature of the act.” Jd. at 163.
In Lawrence v. Texas, 539 U.S. 558 (2003), this Court
struck down a Texas statue that made criminal the act of
sodomy between members of the same sex. This Court,
overruling its previous decision in Bowers v. Hardwick, 478
U.S. 186 (1986), held that the petitioners’ right to liberty
under the Due Process Clause gives them the full right to
engage in private sexual conduct, to include sodomy, without
intervention of the government. Lawrence, 539 U.S. at 578.
This Court recognized “an emerging awareness that liberty
gives substantial protection to adult persons in deciding how
to conduct their private lives in matters pertaining to sex.”
Ultimately, this Court concluded that the State cannot
demean the existence of individual. or “control their destiny
by making their private sexual conduct a crime.” /d.
While the Texas statute made sodomy criminal only
among members of the same sex, Article 125 strikes even
more broadly at the liberty interests of military members by
proscribing private and consensual sexual acts among all
adults, even among married couples. By its terms, Article
125 is not directed at any particular impact on the military, as
it is not limited in application to sexual acts that somehow
affect the operation of the armed forces. Because Article
125, on its face, makes criminal the type of consensual sexual
conduct that this Court has now held is part of the liberty
interest of citizens protected under the Due Process Clause,
the statute is constitutionally invalid.
11
The Court of Appeals for the Armed Forces recently
addressed the application of Lawrence in the military context
in United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). In
beginning its analysis, the Court first acknowledged that the
“men and women in the Armed Forces do not leave
constitutional safeguards and judicial protection behind when
they enter military service.” Jd. at 205 (citing United States
v. Mitchell, 39 M.J. 131, 135 (C.M.A. 1994) (quoting Weiss
v. United States, 510 U.S. 163 (1994)). However, the Court
also noted that constitutional rights may sometimes apply
differently to members of the armed forces than they do to
civilians. Marcum, 60 M.J. at 205 (citing Parker v. Levy, 417
U.S. 733, 758 (1974)). Ultimately though, the Court of
Appeals recognized that this Court, in Lawrence, did not
define the liberty interest at stake “in a manner that on its
face would preclude its application to military members.” Jd.
at 206.
In Marcum, the Court of Appeals noted that this Court
did not specifically identify the liberty interest at stake in
Lawrence as a fundamental right. Jd. at 205. The Court of
Appeals decided it would “not presume the existence of such
a fundamental right in the military environment when the
Supreme Court declined in the civilian context to expressly
identify such a fundamental right.” Jd. The lower court was
also uncertain as to whether this Court would apply a rational
basis test or strict scrutiny in analyzing the constitutional
concerns arising from Article 125. Jd.
In resolving the question of how Lawrence impacts
Article 125, the Court of Appeals determined that a
“contextual, as applied analysis,” rather than a facial
challenge to Article 125, was required. Jd. at 206. The court
thereafter settled on an analysis that consists of the following
three questions:
12
First, was the conduct that the accused was found
guilty of committing of a nature to bring it within the
liberty interest identified by the Supreme Court?
Second, did the conduct encompass any behavior or
factors identified by the Supreme Court as outside the
analysis in Lawrence? Third, are there additional
factors relevant solely in the military environment
that affect the nature and reach of the Lawrence
liberty interest?
Marcum, 60 M.J. at 206-07 (internal citations omitted).
The Court of Appeals further elaborated on the second
question of the analysis, addressing factors identified by this
Court as not involved in Lawrence. Specifically, the Court of
Appeals indicated that the second question was concerned
with conduct that involved minors, public conduct or
prostitution, or persons who might be injured or coerced or
who are situated in relationships where consert might not
easily be refused. Jd. at 207.
In Marcum, the accused was convicted, contrary to his
pleas, of engaging in consensual oral sodomy with another
military member. The Court of Appeals, in conducting its
contextual analysis, focused on the fact that Marcum’s sexual
partner was another airman who was subordinate-to Marcum
within the military chain of command. Noting the
prohibition of sexual conduct between superiors and
subordinates spelled out in Air Force regulations, the court
reasoned that the subordinate airman was “a person ‘who
might be coerced’ or who was ‘situated in [a] relationship[]
where consent might not easily be refused.’”” Jd. at 208
(citing Lawrence, 539 U.S. at 578). Based on the
superior/subordinate relationship, the court concluded that
Marcum’s conduct fell outside the liberty interest identified
in Lawrence and that Article 125 was, therefore,
constitutional as applied to Marcum.
13
In reaching its conclusion the Court noted that “[wJhile
servicemembers clearly retain a liberty interest to engage in
certain intimate sexual conduct, ‘this right must be tempered
in a military setting based on the mission of the military, the
need for obedience of orders, and civilian supremacy. Id.
(citing United States v. Brown, 45 M.J. 389, 397 (C.A.A.F.
1996)). So, even though the only element required to be
proven at trial to convict Marcum of violating Article 125
was the act of sodomy itself, the Court of Appeals affirmed
his conviction because it found support in the record that
there was an uncharged official relationship between the two
men which removed their private, consensual sodomy from
the liberty interest identified in Lawrence.
Unfortunately, the analysis of the Court of Appeals for
the Armed Forces is fundamentally flawed for several
reasons. First, by sifting through the record of trial for
uncharged factors to support the conviction under Article
125, the court took upon itself the role of the fact finder at
trial. The court in Marcum basically identified, for the first
time on appeal, the superior/subordinate relationship as the
essential factor that justified Marcum’s conviction. While
the superior/subordinate relationship -may have been
established at trial, under Article 125 it would not have been
necessary for the court-martial to find that such a relationship
existed in order to convict Marcum.
Under the Marcum analysis, the finder of fact at trial is
relegated to the task of simply finding the predicate fact that
an accused engaged in sodomy. Based on that finding alone,
the accused will be convicted of a violation of Article 125.
The essential holding of the Marcum Court is that the
offending circumstances that supposedly remove the act of
sodomy from the protected liberty interest identified in
Lawrence need not actually be alleged in the charged offense
or found beyond a reasonable doubt by the finder of fact at
trial. Instead, any such uncharged aggravating factor can
14
later become the means by which an appellate court can hold
that Article 125 is not unconstitutional as applied to that
accused.
The result in Marcum amounts to little more than judicial
fact-finding on appeal. Such a post-hoc search for uncharged
factors that will support a conviction violates an accused’s
right to a trial of the facts by a court-martial. See United
States v. Riley, 50 M.J. 410 (C.A.A.F. 1999) (an appellate
court cannot affirm a conviction on a theory that was not
presented to the fact-finder). As this Court has stated, the
right of an accused to have the truth of an allegation
determined by the finder of fact at trial is no mere procedural
formality, “but a fundamental reservation of power in our
constitutional structure. Blakely v. Washington, 124 S. Ct.
2531, 2538 (2004).
In settling on a case-by-case, as-applied, analysis the
Court of Appeals has apparently concluded that should an
accused be convicted under Article 125, on appeal, if there
are no other aggravating factors that remove the sexual
conduct from the liberty interest recognized in Lawrence, the
conviction could be overturned. Under such circumstances,
the fact that an accused will have already run the gauntlet of
the criminal justice system, been convicted of a crime, and
served a portion or all of the adjudged sentence will
apparently have to be chalked up as a form of judicially-
countenanced tough luck.
Another substantial flaw in the Marcum decision is that
military members stationed throughout the world will have
little guidance as to what personal, private sexual conduct
with other consenting adults will actually still constitute a
criminal offense. This is particularly problematic given the
likelihood that a significant percentage of military members
engage in conduct criminalized by Article 125. See RAND,
Sexual Orientation and U.S. Military Personnel Policy:
es
15
Options and Assessment 58 (1993) (citing surveys and
population estimates for the proposition that a majority of
both married and unmarried military personnel engage in oral
sexual activity, at least occasionally).
While other citizens of the United States can rest assured,
in light of Lawrence, that their private, consensual sexual
conduct with other adults cannot be criminally punished by
any governmental entity, military members have no similar
assurance. Because Article 125 requires nothing more on its
face for conviction than the act of sodomy itself, the holding
in Marcum does little to illuminate the terrain of the liberty
Clause. If the Marcum decision stands, for all practical
purposes, the liberty interest recognized in Lawrence will be
nothing more than a mirage for the military members who
volunteer to protect the constitutional rights of every citizen
of this country.
The flawed reasoning in Marcum is further demonstrated
by a review of petitioner’s case. This Court has stated:
No principle of procedural due process is more
clearly established than that notice of the specific
charge, and a chance to be heard in a trial of the
issues raised by that charge, if desired, are among the
constitutional rights of every accused in a criminal
proceeding in all courts, state or federal.
Cole v. Arkansas, 333 U.S. 196 (1948). The Court of
Appeals for the Armed Forces has also recognized that “to
uphold a conviction on a charge that was neither alleged in
the indictment nor presented to a jury at trial offends the most
basic notions of due process.” United States v. Brown, 18
M.J. 360 (C.M.A. 1984).
16
In this case, petitioner was charged with consensual
sodomy with B.E.P. The specification did not allege that he
engaged in sodomy with a minor,° forcible sodomy, sodomy
with a subordinate, public sodomy, sodomy in exchange for
money, or any other variation of sodomy. Unfortunately, the
decision of the Court of Appeals in this case sheds no light
on the ultimate basis for the Court’s decision to affirm
petitioner’s conviction. Because the Court did not explain its
decision beyond a mere citation to Marcum, petitioner has no
way of knowing what conduct of his has resulted in an
affirmed conviction under Article 125.
‘One could speculate that the Court of Appeals based its
decision on the notion that petitioner’s conduct was public in
nature. But, obviously the specification of Charge I did not
allege any public conduct. In fact, the specification did not
allege any other factor that the Court of Appeals has now said
it will look for in deciding whether to affirm a conviction on
appeal under Article 125. Because no such additional factor
was alleged, petitioner was not on notice prior to or at trial
that there were potentially additional unstated elements that
he needed to defend against at trial.
Because no additional element was alleged, the military
judge was not required to list or describe any additional
element. Had petitioner been aware that there was an
additional, unstated, element to the offense he was charged
with, petitioner may have chosen to litigate the allegation.
Based on the specification and petitioner’s admission that he
engaged in sodomy with B.E.P., nothing more than the act of
sodomy was required for the military judge to accept his plea
and enter a guilty finding. Although petitioner mentioned
during his plea inquiry that the sodomy occurred in a park in
> As stated previously, B.E.P. was 16 years old at the time of the alleged
offense (see Pros. Ex. 1). Therefore, under the Uniform Code of Military
Justice, he was not considered a minor for the purposes of legally
consenting to sexual conduct.
ee
17
Florida, he was not pleading guilty to that fact because it was
not an element of the offense. That fact was nothing more
than a collateral matter to the charge as alleged and petitioner
had no reason to know at the time that such a collateral
matter could later form the primary justification for tne Court
of Appeals to affirm his conviction.
Under this Court’s decision in Lawrence, the
specification of Charge I in this case failed to state a
legitimate criminal offense. Appellant was not placed on
notice by the specification that there was some aggravating
factor present that would remove his conduct from the liberty
interest he enjoys as a citizen of the United States. For the
appellate court to now find that petitioner is guilty of a
violation of Article 125 based on some unstated factor that
was not alleged in the specification and to which petitioner
did not specifically plead guilty is a substantial violation of
his due process right to be informed of the nature of the
charge against him.
Because the decision of the Court of Appeals for the
Armed Forces in this case conflicts with this Court’s holding
in Lawrence and because this case addresses the important
federal question of what liberty interests are protected for
military members, this Court should grant review of this
issue.
II, _Petitioner’s admission that his possession and
distribution of “child pornography” was service
discrediting was not knowing and voluntary in light of the
fact that he was provided an unconstitutionally overbroad
definition of “child pornography.”
This Court has long held that a guilty plea is not
voluntary if an accused "has such an _ incomplete
understanding of the charge that his plea cannot stand as an
intelligent admission of guilt." Henderson v. Morgan, 426
18
US. 637, 645 n.13 (1976). “[A] plea does not qualify as
intelligent unless a criminal defendant first receives ‘real
notice of the true nature of the charge against him, the first
and most universally recognized requirement of due
process.”” Bousely v. United States, 523 U.S. 614, 618
(quoting Smith v. O’Grady, 312 U.S. 329, 334 (1941)). Such
notice is all the more critical when a decision of this Court
places conduct “beyond the power of the criminal law-
making authority to proscribe” and there is “a significant risk
that a defendant stands convicted of an ‘act that the law does
not make criminal.” Jd. at 620 (citations omitted).
In Ashcroft v. Free Speech Coalition, 535 U.S. 234
(2002), this Court placed certain speech—that is, speech of a
pornographic nature that is neither obscene nor the product
of child sexual abuse—beyond the power of Congress to
proscribe. This Court held that portions of the Child
Pornography Prevention Act (CPPA) of 1996° were
overbroad and therefore unconstitutional. Specifically, this
Court struck down the language “appears to be a minor” in
Section 2256(8)(B) and the language “conveys the
impression” in Section 2256(8)(D).
In holding that the challenged definitions were
unconstitutionally overbroad, this Court recognized that by
using the language in question, Congress attempted to extend
the ban on child pornography to virtual child pornography.
Therefore, the CPPA had the effect of criminalizing
substantial amounts of protected expression such as materials
that are not legally obscene, as measured by the standard set
forth by this Court in Miller v. California, 413 U.S. 15
(1973), and that do not involve the actual abuse of children
in its creation. Free Speech Coalition, 535 U.S. at 241.
° The Child Pornography Prevention Act of 1996 amended Title 18 of the
United States Code by revising Sections 2251, 2252, and 2256, and by
adding Section 2252A.
19
In Free Speech Coalition, this Court cited examples of
the type of virtual child pornography that the
unconstitutional language of the CPPA impermissibly
criminalized. This Court noted that the unconstitutional
definitions under the CPPA would make illegal works such
as computer generated images and images created through
more traditional means such as Renaissance paintings and
pictures that only appear to be of a minors engaging in
sexually explicit conduct. /d.
This Court realized that the overbroad language of the
CPPA would conceivably make criminal the possession of
mainstream Hollywood movies such as Traffic and
American Beauty, which contain relatively explicit scenes of
sexual conduct involving underage characters, even though
the actors playing the characters are actually adults who only
appear to be minors. /d. at 241, 247-48. Ultimately, this
Court made clear its concern with the proscription of speech
that recorded no crimes and created no victims by its
production. Jd. at 250. Virtual child pornography is such a
form of speech. —
In United States v. O’Connor, the Court of Appeals for
the Armed Forces held that O’Connor’s guilty plea to
receiving and possessing child pornography in violation of
Section 2252A, as assimilated under clause 3 of Article 134,
was improvident because the military judge had used the
same overbroad definitions of child pornography that this
Court struck down in Free Speech Coalition. The court
recognized that, in light of this Court’s decision in Free
Speech Coalition, it is no longer enough to knowingly
possess visual depictions that appear to be minors engaging
in sexually explicit conduct. Instead, the court
acknowledged that, “the ‘actual’ character of the visual
depictions is now a factual predicate to any plea of guilty
under the CPPA.” O’Connor, 58 M.J. at 453.
20
The court held that it was unclear from the plea inquiry
and the record whether O’Connor was pleading guilty to
possession of virtual or actual child pornography. In the
absence of any discussion or focus in the record regarding
the “actual” character of the images, the Court of Appeals
stated that it could not conclude that O’Connor’s guilty pleas
to violations of Section 2252A, as assimilated under clause 3
of Article 134, were provident. Jd. at 453-54.
The Court of Appeals then considered whether
O’Connor’s guilty plea could be affirmed as a lesser-
included offense under clause 1 or clause 2 of Article 134,
UCMJ. The court explained that conduct “is punishable
under Article 134 if it prejudices ‘good order and discipline
in the armed forces’ [clause 1], if it is ‘of a nature to bring
discredit upon the armed forces’ [clause 2], or if it is a crime
or offense not capital [clause 3].” Jd. at 452. In discussing
the interplay between the three clauses under Article 134, the
court stated, “The three clauses do not create separate
offenses, but rather provide alternative ways of proving the
criminal nature of the charged misconduct.” /d. (citing
United States v. Sapp, 53 M.J. 90, 92 (C.A.A.F. 2000).
The court ultimately concluded that O’Connor’s guilty
plea could not be used to affirm a conviction as to a lesser-
included offense under clause 1 or 2 of Article 134.
Although O’Connor had actually stipulated at trial that his
conduct was service discrediting, the court held that the
absence of any discussion of that element during the plea
inquiry by either O’Connor or the military judge gave it
pause. Id. at 454. The court noted that, in the wake of Free
Speech Coalition, “the ‘virtual’ or ‘actual’ status of the
images at issue has constitutional significance. That
constitutional significance may, in turn, bear on ‘the nature
of the prohibited conduct’, i.e., its service-discrediting
character. Id. at 454-55.
21
The Court of Appeals reasoned that O’Connor, in
pleading guilty, was focused on the question of whether or
not his conduct violated Section 2252A, not whether his
conduct was service discrediting. Because there was no
conscious discussion of the service discrediting character of
his conduct on the record, the court concluded that O’Connor
might not have understood the nature of the prohibited
conduct. Accordingly, the court refused to affirm a
conviction under either clause 1 or clause 2 of Article 134.
However, the Court of Appeals in O’Connor did leave open
the question of whether, in the wake of Free Speech
Coalition, the possession of virtual child pornography can be
punishable as service discrediting conduct under clause 2 of
Article 134.
The Court of Appeals for the Armed Forces subsequently
answered that question in the affirmative in United States v.
Mason, 60 M.J. 15 (C.A.A.F. 2004). In Mason, the accused,
a commissioned officer, pled guilty to knowingly receiving
child pornography via the Internet on a government
computer while he was on duty. During the plea inquiry, in
defining the offense for Mason, the military judge included
what he termed a “fourth element.” This element addressed
whether Mason’s conduct was either prejudicial to good
order and discipline or service discrediting. The military
judge explained that he was adding this “fourth element” in
the event it is determined that Mason’s plea was improvident
on the charged offense. Mason stated that he understood the
“fourth element” and why it had been included. He then
admitted that his conduct was prejudicial to good order and
discipline or service discrediting. Jd. at 18.
Just as in O’Connor, the Court of Appeals held that
Mason’s guilty pleas to offenses under Section 2252A were
improvident because the military judge provided the accused
with the definitions of child pornography that this Court
stuck down as unconstitutional in Free Speech Coalition.
22
The court held that, under its holding in O’Connor, “a
provident guilty plea to a violation of the CPPA must reflect
that the accused violated those portions of the statute not
affected by the Supreme Court’s ruling in Free Speech |
Coalition.” Id.
But unlike the situation in O’Connor, the court went on
to hold that Mason’s admissions during the providence
inquiry could be used to affirm a conviction for a lesser-
included offense under clause 1 and clause 2 of Article 134.
In doing so, the Court focused on the fact that the military
judge advised Mason of the “fourth” element and that Mason
admitted that his conduct was prejudicial to good order and
discipline or of a nature to bring discredit upon the armed
forces. Id.
_ In distinguishing its decision in Mason from the holding
in O’Connor, the CAAF explained:
The plea colloquy in O’Connor “was focused solely
on ‘the nature of the prohibited conduct’ under the
CPPA without any discussion or acknowledgment
of the criminal nature of the conduct deriving
alternatively and independently from its character as
service-discrediting or prejudicial to good order and
discipline.
Mason, 60 M.J. at 19. So, to the Court of Appeals, the
important distinction between O’Connor and Mason was the
admission by Mason that his conduct was service discrediting j
or prejudicial to good order and discipline. However, that
was not the end of the Court’s analysis.
In determining whether it could affirm a finding of guilt
under clause 1 or clause 2 of Article 134, the court stated that
the question involves a constitutional dimension flowing
from this Court’s “extension of First Amendment protection
23
to certain depictions of minors engaging in sexually explicit
conduct, i.e., ‘virtual’ as opposed to ‘actual’ images.” Jd. In
analyzing that constitutional dimension, the Court held that
“the ultimate question is whether the status of the images in
the present case as ‘virtual’ or ‘actual’ is of consequence in
the context of assessing the providence of Mason’s guilty
plea under clauses 1 and 2.” Id.
The Court of Appeals focused its analysis on the fact that
Mason admitted that he was a commissioned officer in the
United States Air Force and that he had received and viewed
the pornographic images on a government computer at his
workplace. The court held that, under those circumstances,
the status of the images as “virtual” or “actual” child
pornography was of no consequence because the distinction
between “actual” and “virtual” child pornography did not
alter the character of Mason’s conduct in viewing the
material on government equipment at work. Jd. at 20. In
fact, the court reasoned that even if the images in question
were only “virtual” in nature and did not depict actual
minors engaging in sexually explicit conduct, the fact that
Mason viewed the images on a government computer in his
workplace supported a conviction under clause 1 or clause 2
of Article 134.
In the petitioner’s case, in defining the offense charged,
the military judge set forth the very same unconstitutional
definitions struck down by this Court in Free Speech
Coalition. The Court of Appeals apparently concluded, as it
had in O’Connor and Mason, that petitioner had an
incomplete understanding of the charged offense as a result
of the reliance by the military judge on the unconstitutional
definitions. Therefore, as the court had done in Mason, it
7 In affirming Mason’s conviction based solely on clauses 1 and 2 of
Article 134, just as in the present case, the court amended the
specification by striking alt language in the specification that made
reference to or implied a violation of 18 U.S.C. § 2252A.
el
24
acquitted petitioner of the offense charged by deleting from
the specification any reference to Section 2252A. Appendix
A, p. 2a. But the Court of Appeals, without explanation,
affirmed petitioner’s conviction under clause 1 and clause 2
of Article 134. Although the court did not explain its
decision, it appears that the court concluded that it could do
so because petitioner agreed with the military judge’s
assertion that his conduct was service discrediting.
See ”
a a
By applying the holding in Mason to the facts in the
present case, the Court of Appeals has apparently ignored its
own concerns, expressed in both O’Connor and Mason,
regarding the “constitutional dimension” surrounding the
nature of the images in question as either “actual” or
“virtual” child pornography. While petitioner agreed during
the providence inquiry that the images in question depicted
minors engaged in sexually explicit acts, he never admitted
that the images were created using actual children who were
engaged in sexually explicit conduct. In fact, it is
completely unclear from petitioner’s statements whether he
believed the images depicted “actual” or merely “virtual” i
child pornography.
heat Nl init tnt ——
Of course, at the time of his pleas, this Court had not yet
invalidated two of the definitions contained in 18 U.S.C. §
2256(8). So in discussing his pleas with the military judge,
with the unconstitutional definitions in mind, petitioner had
no reason to distinguish between “actual” and “virtual” child
pornography. The state of the law at the time made any such
distinction irrelevant and inconsequential. Certainly the )
Court of Appeals was correct therefore in refusing to affirm
petitioner’s convictions under clause 3 of Article 134 as
charged. However, in affirming convictions under clause |! \
or 2 of Article 134, the Court has apparently drawn what it
considers an important distinction where there is, in fact, no
substantive difference.
Tens
25
Petitioner agreed that his conduct was_ service
discrediting only after the military judge essentially advised
him that it was against federal law to possess virtual child
pornography as the definitions under the CPPA provided at
the time. It was only in this context that petitioner admitted
that his conduct met the criteria of the “third element.”
Petitioner was simply agreeing with the military judge’s
assertion that his conduct was service discrediting or
prejudicial because his acts were clearly illegal under the law
in effect at the time, regardless of whether the images
depicted “actual” child pornography.
Petitioner’s agreement that his actions were service
discrediting simply cannot be logically divorced from the
critical misunderstanding of the definition of child
pornography held as a result of the unconstitutional
definitions provided by the military judge. He was, after all,
improvidently pleading guilty to the charged offense that had
been assimilated under clause 3 of Article 134.
The faulty reasoning of the CAAF in affirming
petitioner’s convictions under clause 1 or 2 is apparent when
the effect the unconstitutional language of the CPPA had on
petitioner is factored into the equation. If, for example,
petitioner had pled guilty at his court-martial based solely on
his possession of a copy of the movie Traffic, his conviction
could have been upheld on appeal under the law as it existed
at the time of his court-martial. Based on his understanding
of the law at the time, as provided by the military judge,
petitioner would also have undoubtedly agreed that his
conduct in possessing that movie, and consequently violating
the express provisions of the CPPA, was service discrediting.
However, the intervening decision of this Court in Free
Speech Coalition makes all the difference. Because a
conviction based on an admission that he possessed “virtual”
child pornography such as the movie Traffic could not now
26
be upheld, absent an allegation that the materials were
obscene, petitioner’s convictions should not then be affirmed
as a violation of either clause 1 or clause 2 merely because
petitioner admitted that his actions were service discrediting.
Petitioner also did not reveal facts, such as those revealed
in Mason that could objectively support a conviction based
on his discussion of the “third element.” Unlike the
appellant in Mason, who had downloaded pornographic
images onto his government computer at his work place, the
petitioner possessed and viewed pornographic images on his
personal computer in the privacy of his own home.
In light of the fact that this Court has held that possession
of “virtual” child pornography is constitutionally protected
as long as it is not obscene, the petitioner might not now
agree that his conduct was either prejudicial to good order
and discipline oz service discrediting. However, the Court of
Appeals for the Armed Forces is apparently willing to hold
him to an admission to that effect even though that
admission was made at a time when he had no reason to
know that the portions of the CPPA that served to
criminalize “virtual” child pornography — were ‘
unconstitutional.
Unlike the court’s conclusion in Mason, the status of the
images in the present case as either “virtual” or “actual” is
constitutionally significant in the context of assessing the
validity of petitioner’s pleas. It cannot be said, therefore,
that the petitioner’s guilty plea to the “third element” was
“voluntary” and “intelligent” as the Constitution requires it
to be. Because the decision of the Court of Appeals for the
Armed Forces conflicts with relevant decisions of this Court
on the constitutional requirement that a plea be “veluntary,”
this Court should exercise its supervisory power and grant
the petition on this issue.
Se aN AEROS
a I
27
Ill. Petitioner lacked “fair warning” that his conduct was
prejudicial to good order and discipline or of a nature to
bring discredit upon the armed forces.
The final question asks this Court to examine whether
Article 134, as it was applied in this case, is overly broad
under the First Amendment and is void for vagueness under
the Fifth Amendment. The petitioner does not challenge the
constitutionality of Article 134 as a whole.
Clauses 1 and 2 of Article 134 provide that a court-
martial may punish any act or omission as long as the act or
omission was either prejudicial to good order and discipline
or of a nature to bring discredit upon the armed forces. In
this case, because petitioner did not admit that the images in
question were produced through the use of children engaging
in sexually explicit conduct, the petitioner stands convicted
of knowingly possessing and distributing virtual child
pornography on his personal computer at his home. But the
charged offenses did not allege and the petitioner did not
admit that the images were obscene. Thus, the petitioner’s
conviction should be. affirmed only if the mere possession of
virtual child pornography, without more, is per se prejudicial
to good order and discipline or service discrediting.
The Court of Appeals for the Armed Forces apparently
reached this conclusion. To do so, however, the court must
have also necessarily concluded that, by definition, the
virtual images had no value of any kind—political, scientific,
literary, or artistic. But such a conclusion ignores the
concerns this Court stated in Free Speech Coalition about the
government’s proscription of speech that is neither obscene
nor the product of sexual abuse.
If the court’s decision in this case is allowed to stand, the
government will have arbitrarily diminished the First
Amendment rights of its servicemen and women. Even
t
‘
28
worse, servicemen and women will necessarily be reduced
“to reading only what is fit for children” or risk being -
criminally prosecuted for matters about which they have no
“fair warning.” The peril arises when the proscribed speech
is constitutionally protected in the larger civilian society and
there is no government regulation expressly prohibiting it in
the military. A military member of ordinary intelligence
must therefore speculate as to what materials he can lawfully
possess and what materials are prohibited.
To be sure, the First Amendment rights of servicemen
and women are not necessarily coextensive with those of
ordinary citizens. As this Court has stated in Parker v. Levy,
417 U.S. 733 (1974):
While the members of the military are not excluded
from the protections granted by the First Amendment,
the different character of the military community and
of the military mission requires a different application
of those protections. The fundamental necessity for
Obedience, and the consequent necessity for
imposition of discipline, may render permissible
within the military that which would be
constitutionally impermissible outside it.
id. at 758 (affirming a conviction under Article 134
where an officer had publicly urged enlisted personnel to
refuse to obey orders which might send them into
combat).
But this is not a case where the petitioner openly urged
subordinates to disobey orders. This is a case about what he
viewed in the privacy of his own home or shared with
clarified the extent to which military members do or do not
enjoy First Amendment rights in their private lives. The
absence of guidance of this kind leaves a void that raises
29
serious questions about the “fair warning” and “notice” that
military members have about conduct for which they can be
punished but which ordinary citizens are free to engage in.
A new recruit and a seasoned veteran alike may fairly
ask if he or she can legally acquire, for example, copies of
movies such as “American Beauty” or “Traffic” or some
modern production of “Romeo and Juliet” without being
subjected to a court-martial. Men and women “of common
intelligence must necessarily speculate as to what... .
conduct is to the ‘prejudice of good order and discipline in
the armed forces’ or conduct ‘of a nature to bring discredit
upon the armed forces’ really means.” Parker v. Levy, 417
U.S. at 762 (Blackmun, J, dissenting).
In the wake of Free Speech Coalition and in the absence
of any government regulation prohibiting the receipt of
virtual child pornography, this case presents an important
constitutional question that has not been, but should be,
settled by this Court. This Court should therefore grant
review of the third question presented.
-CONCLUSION
For the foregoing reasons, the petitioner therefore
respectfully requests that this Court grant his petition for a
Writ of Certiorari.
December 2004
30
Respectfully submitted,
L. MARTIN POWELL
Captain, United States Air Force
Counsel of Record
TERRY L. McELYEA
Major, United States Air Force
Counsel for Petitioner
CARLOS L. McDADE
Colonel, United States Air Force
Counsel for Petitioner
Appellate Defense Division
Air Force Legal Services Agency
112 Luke Avenue, Suite 343
Bolling AFB, DC 20332-8000
(202) 767-1562
la
Appendix A
UNITED STATES, Appellee
Vv.
Ryan W. DAVIS, Appellant
No. 02-0065/AF
Crim. App. No. 33877
United States Court of Appeals for the Armed Forces
Decided September 20, 2004
On consideration of Appellant's Petition for Grant of
Review ana in light of this Court's decisions in United States
v. Mezcum, 60 M.J. 198 (C.A.A.F. 2004), United States v.
Mason, 60 M.J. 15 (C.A.A.F. 2004), and United States v.
O'Connor, 58 M.J. 450 (C.A.A.F. 2003), it is, by the Court,
this 20th day of September, 2004,
ORDERED:
That the Petition for Grant of Review is granted on the
following issues:
WHETHER PROSECUTION UNDER ARTICLE
125 VIOLATES SUBSTANTIVE DUE PROCESS
BY UNFAIRLY INFRINGING ON
SERVICEMEMBERS’ FUNDAMENTAL RIGHT
TO PRIVACY. ALSO WHETHER PROSECUTION
UNDER ARTICLE 125 FOR PRIVATE
CONSENSUAL NON-COMMERCIAL SODOMY
VIOLATES A STATUTORILY ESTABLISHED
ZONE OF PRIVACY WITHOUT A COMPELLING
GOVERNMENT INTEREST.
2a
WHETHER APPELLANT’S PLEA OF GUILTY TO
POSSESSING AND TRANSPORTING CHILD
PORNOGRAPHY UNDER 18 U.S.C. § 2252A IS
IMPROVIDENT BECAUSE CONVICTION
UNDER SAID STATUTE VIOLATES THE FIRST
AMENDMENT’S GUARANTEE OF _ FREE
SPEECH AND BECAUSE THE PHRASES
“APPEARS TO BE” AND “CONVEYS THE
IMPRESSION” IN THE STATUTE MAKE IT
UNCONSTITUTIONALLY VAGUE AND
OVERBROAD.
In terms of Appellant’s challenge to his conviction for
possessing and distributing child pornography, it is ordered
that specifications 1 and 2 of Charge III are amended to read
as follows:
In that Second Lieutenant RYAN W. DAVIS, United
States Air Force, Detachment 1, 325th Fighter Wing,
Pensacola Naval Air Station, Pensacola, Florida, did
at or near Pensacola, Florida, on or about 15
December 1997, geen ae =, - —
Pits ia spot hac
In that Second Lieutenant RYAN W. DAVIS, United
States Air Force, Detachment 1, 325th Fighter Wing,
Pensacola Naval Air Station, Pensacola, Florida, did
in the continental United States between on or about
16 October 1997 and on or about 16 October 1997,
knowingly distribute by computer child pornography
2252Afa)2}A).
The decision of the United States Air Force Court of
Criminal Appeals is affirmed as to Charge III and its
3a
specifications as amended, as well as to the remaining
Charges, specifications, and the sentence.
4a
Appendix B
UNITED STATES AIR FORCE COURT OF
CRIMINAL APPEALS
UNITED STATES
v.
Second Lieutenant RYAN W. DAVIS
United States Air Force
ACM 33877
28 August 2001
Sentence adjudged 22 September 1999 by GCM convened at
Tyndall Air Force Base, Florida. Military Judge: Linda S.
Murnane (sitting alone).
Approved sentence: Dismissal, confinement for 24 months,
and forfeiture of all pay and allowances.
Appellate Counsel for Appellant: Colonel James R. Wise,
Lieutenant Colonel Timothy W. Murphy, and Captain Karen
L. Hecker.
Appellate Counsel for the United States: Colonel Anthony P.
Dattilo, Lieutenant Colonel Ronald A. Rodgers, and Captain
Peter J. Camp.
Before
YOUNG, BURD, and PECINOVSKY
Appellate Military Judges
Sa
OPINION OF THE COURT
PECINOVSKY, Judge:
Pursuant to his pleas, appellant was convicted of: 1)
sodomy; 2) conduct unbecoming an officer by knowingly
persuading, inducing, enticing, or coercing a 15-year-old boy
to engage in indecent acts; 3) possession and distribution of
child pornography, in violation of 10 USC. §
2252A(aX5\(B); and 4) obstructing justice. Articles 125,
133, 134, UCMJ, 10 U.S.C. §§ 925, 933, 934. He was
sentenced by a military judge to a dismissal, 24 months’
confinement, and forfeiture of all pay and allowances.
Appellant now raises the following errors: 1) The plea for
possession of child pornography was improvident because
appellant deleted the images; 2) Appellant was subjected to
cruel and unusual punishment, in violation of Article 55,
UCMJ, and the Eighth Amendment, due to sexual orientation
harassment and falling debris; 3) Appellant received
ineffective assistance of counsel in his clemency submission;
4) Article 125, UCMJ, violates the First Amendment’s
establishment clause; 5) Article 125 violates the Eighth
Amendment; 6) Article 125 violates substantive due process,
infringing on the right to privacy; 7) Article 125 violates the
Fifth Amendment’s equal protection clause; and 8) The
guilty plea as to child pornography was improvident because
the statute’s “virtual depiction” section is unconstitutionally
vague and overbroad. All but the first issue were raised
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982). Having fully considered appellant’s arguments, we
affirm.
I. Facts
Appellant had a hobby. He liked to surf the web and
download child pornography. He also entered internet chat
rooms and, during one of these chats, met the victim, BEP, a
6a
15-year-old boy. Appellant sent BEP e-mails with pictures
of underage boys engaged in mutual oral sodomy. Appellant
met with BEP, but did not initially engage in sex with him.
However, shortly after BEP’s_16th birthday, they engaged in
mutual oral sodomy.
Appellant was convicted, pursuant to his pleas, of
possession of child pornography, sodomy, and coercion of
BEP to engage in indecent acts. Appellant’s offenses were
discovered after America On Line (AOL), an internet service
provider, reported BEP to the Federal Bureau of
Investigations (FBI) for receiving child pornography.
Subsequently, BEP gave appellant’s name to the FBI. On 15
December 1997, the FBI seized appellant’s computer,
pursuant to a search warrant, and interviewed appellant.
Following the FBI interview, appellant contacted BEP
through the internet and tried to get BEP to change his story —
as to their sexual encounter.
II. Deleted Child Pornography Images
Appellant pled guilty to a specification alleging that he
wrongfully possessed child pornography on or about 15
December 1997. He now asserts his plea is improvident.
Appellant alleges that during his unsworn statement he set up
matter inconsistent with that plea — he said he had deleted the
images by August 1997.
In order to overturn a military judge’s acceptance of a
guilty plea, the record of trial must “show a ‘substantial
basis’ in law and fact for” rejecting the plea of guilty.
United States v. Faircloth, 45 M.J. 172, 174 (1996) (quoting
United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). In
Faircloth, our superior court adopted the language of Senior
Judge Pearson, concurring in part and dissenting in part, in
an Air Force appellate decision: “[T]his is a guilty plea,
folks. . . . By pleading guilty, appellant knowingly waived a
Ta
trial of the facts.” Id. at 174 (citing United States v.
Faircloth, 43 M.J. 711, 718 (A.F. Ct. Crim. App. 1995)).
Where an appellant pleads guilty, the issue must be analyzed
in terms of providence of his plea, not sufficiency of the
evidence. Faircloth, 45 M.J. at 174.
After being advised of the elements of the offense,
appellant told the military judge that he possessed the child
pornography on 15 December 1997. In the stipulation which
accompanied appellant’s guilty plea, appellant agreed to the
following:
Between 6 June 1996 and 15 Dec 1997, the accused
received each [computer graphic file depicting young
men and boys under the age of 18 either naked or
engaged in sexual activity, to include oral and anal
sodomy and masturbation] via e-mail, or by
downloading them to his computer from Internet web
sites and Internet news groups. . . . The accused
viewed each of these images and then stored them on
his computer. Some he deleted after viewing them
and others he deleted later. When a file is deleted it
remains on the computer. A file deleted becomes a
hidden file. Hidden files do not readily appear on the
computer or in any directories. The [a]ccused knew
that some or all of these deleted files remained on his
computer hard drive. The [a]ccused knew that there
were means available to recover these files.
Contrary to . appellant’s contention, his unsworn
statement does not say that he deleted the images by August
1997. It merely states that he realized he was “on the wrong
path” in August 1997, sought guidance from a pastor, and
deleted the images before being confronted by the FBI.
There is nothing in his unsworn statement that is inconsistent
with his guilty plea. Furthermore, whether appellant actually
possessed the “deleted” files on 15 December 1997 is a
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matter of proof which an accused may contest at trial. By
pleading guilty, he knowingly waived a trial of the facts as to
that issue. Faircloth, 45 M.J. at 174.
Notwithstanding appellant’s waiver of the issue of
possession, under the facts of this case, appellant did
knowingly possess the child pornography on the date
charged, because he knew that the deleted images could be
retrieved. The federal circuits are split on whether deleted
images are “possessed” under 18 U.S.C. § 2252A(aX(5\B).
United States v. Lacy, 119 F.3d 742, 748 (9th Cir. 1997);
United States v. Upham, 168 F.3d 532, 537 (1st Cir. 1999);
United States v. Hall, 142 F.3d 988, 997 (7th Cir. 1998).
The Ninth Circuit decision in Lacy is most closely on point.
In Lacy, a conviction for child pornography possession was
upheld where the accused “attempted to erase” the images,
but knew that the images were still on his hard drive and
diskettes. Lacy, 119 F.3d at 748.
Decisions from the First and Seventh United States
Circuit Courts of Appeals, addressing the deletion of child
pornography images, are factually distinguishable. In
Upham, the conviction for possession of child pornography
was upheld where the deletion of the images occurred after
the charged date of possession. That court refused to
consider the issue of whether “it would be unlawful standing
alone to possess, with the requisite knowledge, a hard drive
or diskette with deleted (but recapturable) images.” Upham,
168 F.3d at 537. Similarly, in Hall, the conviction was
affirmed for possession of child pornography. There, the
appellant failed to delete the images and the court noted that
“Hall had every opportunity to delete any computer files that
he did not wish to retain.” Hall, 142 F.3d at 997. The issue
of how the images could have been deleted was never
squarely before the court. The operative facts here, as
admitted to in the providence inquiry and the stipulation of
fact, are that appellant knew the images were still on his
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computer after deletion and that they were retrievable.
Following the rationale in Lacy, appellant knowingly
possessed the child pornography on the date charged.
III. Sexual Orientation Harassment and Falling Debris
Appellant alleges that, while in confinement, violations
of Article 55, UCMJ, 10 U.S.C. § 855, and the Eighth
Amendment of the United States Constitution occurred, due
to sexual orientation harassment and falling debris.
Appellant seeks “appropriate relief,” without specifying what
it is he wants us to do. An appellant who seeks judicial
review of prison conditions must establish a “clear record” of
both “the legal deficiency in administration and the
jurisdictional basis for action.” United States v. White, 54
M.J. 469, 472 (2001) (citing United States v. Miller, 46 M.J.
248, 250 (1997)).
Appellant complains that, while in confinement, some
inmates and prison staff spoke to him in a rude and sexually
harassing way, which caused him embarrassment. The
complaint was investigated and substantiated, and corrective
action was taken. We have reviewed appellant’s allegations.
No further relief is warranted. Appellant’s sexual orientation
harassment complaint does not rise to the level of cruel and
unusual punishment. See United States v. Sanchez, 53 M.J.
393, 396-97 (2000).
Appellant further complained that a piece of ceiling fell
on him while in confinement. However, an investigation
indicated he sustained no visible injury. Further, there is no
evidence of “deliberate indifference” to inmate health or
safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994)
(quoting Wilson v. Seiter, 501 U.S. 294, 302-03 (1991)).
Appellant has, therefore, failed to demonstrate that his prison
conditions were in violation of Article 55 or the Eighth
Amendment. —
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IV. Ineffective Assistance of Counsel
“Servicemembers are guaranteed the right to effective
assistance of counsel.” United States v. Scott, 51 M.J. 326,
329 (1999) (citing United States v. MacCulloch, 40 M.J. 236,
238 (C.M.A. 1994)), cert. denied, 529 U.S. 1075 (2000);
Article 27, UCMJ, 10 U.S.C. § 827. In determining whether
there is a violation of this right, the Supreme Court and our
superior appellate court have applied a two-prong test.
Strickiand v. Washington, 466 U.S. 668 (1984); Scott, 51
M.J. at 329. An appellant must first show that “counsel’s
representation fell below an objective standard of
reasonableness,” Strickland, 466 U.S. at 688; and second,
that there was prejudice. Jd. at 692. “[A] criminal defendant
alleging prejudice must show ‘that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.”” United States v. Loving, 41 M.J.
213, 248-49 (1994) (citing Lockhart v. Fretwell, 506 U.S.
364, 369 (1993)), aff'd, 517 U.S. 748 (1996).
Appellant alleges that, post-trial, he had difficulties in
contacting his defense counsel for purposes of submitting his
clemency matters. The day prior to the clemency submission
deadline, appellant sent an unsigned clemency statement to
his counsel for review. Counsel submitted the unsigned
statement the following day to the convening authority
without seeking a delay. In his affidavit, appellant alleges
that he intended to submit his arguments that Article 125 and
the child pornography statute were unconstitutional.
Here, an evidentiary hearing is not required to resolve
factual disputes. United States v. Ginn, 47 M.J. 236, 248
(1997). The only “harm” experienced by appellant is that the
convening authority did not see a signed clemency statement
and did not get to review appellant’s constitutional attacks on
the statutes. Regardless of whether the failure of counsel to
obtain a delay in submission of clemency matters constituted
lla
ineffective assistance of counsel, appellant has not
demonstrated prejudice. See Strickland, 466 U.S. at 692;
Article 59(a), UCMJ, 10 U.S.C. § 859(a).
V. Constitutionality of Article 125
Pursuant to United States v. Grostefon, 12 M.J. 431.
(C.M.A. 1982), appellant raises constitutional challenges to
Article 125, UCMJ, 10 U.S.C. § 925, under the First
Amendment, the equal protection aspect of the Fifth
Amendment, and the Eighth Amendment. The
constitutionality of a statute is a question of law; therefore,
the standard of review is de novo. United States v. Wright,
53 M.J. 476, 478 (2000) (citing United States v. Brown, 25
F.3d 307, 308 (6th Cir. 1994)).
A) First Amendment Establishment Clause
Appellant argues that Article 125 violates the First
Amendment’s prohibition against the establishment of
religion. He alleges that the religious basis of Article 125’s
criminalization of sodomy is openly articulated by military
courts, citing United States v. Jones, 14 MJ. 1008
(A.C.M.R. 1982). However, appellant’s reliance upon Jones
as the basis for his constitutional challenge is misplaced.
The Army appellate court, in Jones, simply noted that a
biblical passage stated that oral sodomy is unnatural or
deviant sexual intercourse. Jones, 14 M.J. at 1010. That
court also noted that legal scholars including Blackstone,
Pollock, and Maitland, and the Army and Navy appellate
courts have expressed the same proposition. Jd.
As opposed to finding a religious purpose to Article 125,
we agree with the Ninth Circuit’s holding, in Hatheway v.
Secretary of the Army, 641 F.2d 1376, 1384 (9th Cir. 1981),
that “in a military setting the proscriptions of Article 125
have a legitimate secular purpose and effect.” Appellant has
“@
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failed to demonstrate that a First Amendment violation of the
Establishment Clause exists in Article 125.
B) Eighth Amendment
Appellant argues that Article 125 violates the Eighth
Amendment’s prohibitions against cruel and unusual
punishment by creating an offense based upon his status as a
A servicemember is entitled, both by statute and the
Eighth Amendment, to protection against cruel and unusual
punishment. United States v. Avila, 53 M.J. 99, 101 (2000);
United States v. Matthews, 16 M.J. 354, 368 (C.M.A. 1983);
Article 55, UCMJ, 10 U.S.C. § 855. In United States v.
White, our superior court spelled out the prohibitions against
cruel and unusual punishment:
In Estelle v. Gamble, 429 U.S. 97 (1976), the
Supreme Court said that the framers’ intent behind
the Eighth Amendment was to prevent barbaric and
torturous forms of punishment. In more recent
history, the standard for what constitutes cruel and
unusual punishment has developed into more than
physical torture. Instead, the current standard is that
the Eighth Amendment prohibits “punishments which
are incompatible with ‘the evolving standards of
decency that mark the progress of a maturing society,’
. . . or which ‘involve th: unnecessary and wanton
infliction of pain... .”” Jd. at 102-03 (citations
omitted).
White, 54 M.J. 469, 473-74 (2001).
Appellant relies upon dicta in Justice Powell’s
concurring opinion in Bowers v. Hardwick, 478 U.S. 186
(1986), for the proposition that an Eighth Amendment issue
13a
exists in the criminalization of sodomy. In his concurrence,
Justice Powell agreed with the majority of the Supreme
Court that the Georgia sodomy statute did not violate any
constitutionally guaranteed right of privacy for homosexuals
to engage in sodomy. Emphasizing that the Georgia statute
at issue in the case, Ga. Code Ann. § 16-6-2 (1984),
authorizes a court to imprison a person for up to 20 years for
a single private, consensual act of sodomy, Justice Powell
commented that, “In my view, a prison sentence for such
conduct -- certainly a sentence of long duration -- would
create a serious Eighth Amendment issue.” Bowers, 478
U.S. at 197 (Powell, J., concurring). Here, the maximum
i for nonforcible sodomy under Article 125 is
confinement for 5 years, a dishonorable discharge, and
forfeiture of all pay and allowances. Appellant has failed to
demonstrate that an Eighth Amendment violation exists in
the maximum punishment enforceable under Article 125.
C) Right to Privacy
Appellant claims that Article 125 violates a fundamental
right of privacy to engage in homosexual sodomy. In
Bowers, the Supreme Court resolved the issue of a right to
privacy for homosexual sodomy, holding that no such right
exists. Bowers, 478 U.S. at 189. Subsequent decisions by
our superior court have held that no fundamental right to
privacy exists, even for consensual heterosexual sodomy.
United States v. Gates, 40 M.J. 354, 354-55 (C.M.A. 1994);
United States v. Henderson, 34 M.J. 174, 175-76 (C.M.A.
1992); United States v. Fagg, 34 MJ. 179, 180 (C.M.A.
1992); United States v. Scoby, 5 M.J. 160 (C.M.A. 1978).
Here, appellant’s claim that Article 125 violates a
fundamental right of privacy fails.
D) Equal Protection
14a
The standards created by the principle of equal protection
apply not only to laws themselves, but also to the manner in
which they are applied. Yick Wo v. Hopkins, 118 U.S. 356,
373-74 (1886) (“Though the law itseif be fair on its face and
impartial in appearance, yet, if it is applied and administered
by public authority with an evil eye and an unequal hand, so
as practically to make unjust and illegal discriminations
between persons in similar circumstances, material to their
rights, the denial of equal justice is still within the
prohibition of the Constitution.”).
Appellant does not mount a facial challenge to Article
125, conceding that “Article 125 is a neutral statute on its
face in that it does not discriminate against homosexuals in
its actual construction.” Rather, he initially alleges that the
statute is unequal in both its effect and its application. While
appearing to mount an “as applied” challenge to the statute,
appellant restates his challenge in his reply brief, stating that
he “does not claim the article is unequally applicable to
heterosexuals and homosexuals, but rather that it unfairly
limits prescribed liberties to homosexuals.” Appellant
alleges that “heterosexual servicemembers are allowed to
have a normal sex life, whereas homosexuals are forced into
celebicy (sic).”
Although styled as an equal protection claim, appellant’s
challenge to Article 125 is neither a facial nor “as applied”
equal protection challenge. He is simply alleging that the
sodomy statute unfairly impinges upon his ability to have
homosexual sex. In essence, he is restating his privacy
claim, which has been rejected by the Supreme Court.
Bowers, 478 U.S. at 197.
VI. Constitutionality of 18 U.S.C. § 2252A
Appellant alleges his guilty plea to possession of child
pornography was improvident because the “virtual
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depiction” section of 18 U.S.C. § 2252A is
unconstitutionally vague and overbroad. Although he did
not contest the constitutionality of this statute at trial, he did
so before this court, contending that the statute is vague and
overbroad both facially and as applied in his case. Appellant
relies upon Free Speech Coalition v. Reno, 198 F.3d 1083
(9th Cir. 1999), which found two phrases in the definition of
child pornography, as contained in 18 U.S.C. § 2256, both
overbroad and vague, but otherwise upheld the
constitutionality of 18 U.S.C. § 2252A.
The Supreme Court has long recognized that
governments are “entitled to greater leeway in the regulation
of pornographic depictions of children” than in the
regulation of other forms of pornography. New York v.
Ferber, 458 U.S. 747, 756°(1982).
There are, of course, limits on the category of child
pornography which, like obscenity, is unprotected by
the First Amendment. As with all legislation in this
sensitive area, the conduct to be prohibited must be
adequately defined by the applicable state law, as
written or authoritatively construed. . . . The
category of ‘sexual conduct’ proscribed must also be
suitably limited and described.
Id. at 764.
Under this constitutional framework, 18 U.S.C. § 2252A
has withstood constitutional attacks asserting that it is
overbroad and vague. United States v. Fox, 248 F.3d 394
(Sth Cir. 2001); United States v. Mento, 231 F.3d 912 (4th
Cir. 2000); United States v. Hilton, 167 F.3d 61 (Ist Cir.
1999); United States v. Acheson, 195 F.3d 645 (11th Cir.
1999). Additionally, as noted above, with the exception of
two phrases in the definition of child pornography, as
contained in 18 U.S.C. § 2256, the Ninth Circuit Court of
16a
Appeals has also upheld the constitutionality of 18 U.S.C. §
2252A.
Finding the reasoning of the First, Fourth, Fifth, and
Eleventh United States Circuit Courts of Appeal persuasive,
the Court of Appeals for the Armed Forces recently held that
18 U.S.C. § 2252A is constitutional. United States v. James,
No. 00-0592/N-MC, slip op. at 7 (15 Aug 2001).
Additionally, as in James, the appellant freely admitted his
belief that the photographs he possessed depicted minors;
appellant did so both during the providence inquiry and
during his second interview with the Air Force Office of
Special Investigations. We, therefore, find that the statute -
was not overbroad as applied to him. See /d., slip op. at 8-
11. Finding no substantial basis in law or fact for
questioning the appellant’s pleas, we find this assignment of
error to be without merit. United States v. Prater, 32 M.J.
433, 436 (C.M.A. 1991).
The findings are correct in law and fact, and nw error
prejudicial to the substantial rights of the appellant occurred.
Accordingly, the findings and sentence are
AFFIRMED.
BURD, Senior Judge: Concurs in result.
OFFICIAL
LANE A. THURGOOD, Captain, USAF
Chief Commissioner
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